Contents

Criticism from Minister

In 2008, the Minister for Public Service and Administration, Geraldine Fraser-Moleketi, described software patents as an[3]:

issue which pose a considerable threat the growth of the African software sector” and how there had been “recent pressure by certain multinational corporations to file software patents in our national and regional patent offices. Whereas free software and open standards are intended to be open and encourage competition, patents are exclusive and anti-competitive by their nature.”

“Whereas there are some industries where the temporary monopoly granted by a patent may be justified … there’s no reason to believe that society benefits from such monopolies being granted for computer programs [and inventions],”

The minister said that the “continued growth in the quantity and quality of free software illustrates that such protection is not required to drive innovation in software. Indeed, all of the current so-called developed countries built up their considerable software industries in the absence of software patents. For those same countries to insist on software patents now is simply to place patents as barriers in front of newcomers.

“African software developers have enough barriers as it is without the introduction of artificial restrictions on what programs they are and aren’t allowed to write,”

Patent office decisions

South Africa has an unusual "non-examination" system regarding the approval of patent applications.[4][5] Their standard patents are thus similar to the Utility models and innovation patents available in other countries.

Microsoft has been granted over 300 patents in South Africa, most of which are for software ideas.[6]

Legislation

(1) A patent may, subject to the provisions of this section, be granted for any new invention which involves an inventive step and which is capable of being used or applied in trade and industry or agriculture.

(2) Anything which consists of:

(a) a discovery;

(b) a scientific theory;

(c) a mathematical method;

(d) a scheme, rule or method for performing a mental act, playing a game or doing business;

(f) a program for a computer; or

(g) the presentation of information, shall not be an invention for the purposes of this Act.

(3) The provisions of subsection (2) shall prevent, only to the extent to which a patent or an application for a patent relates to that thing as such, anything from being treated as an invention for the purposes of this Act.